
I
recently
wrote
about
the
ruling
of
a
federal
district
court
judge
in
U.S.
v.
Heppner.
The
gist
of
my
article
was
that
the
ruling
was
a
warning
that
materials
to
and
from
publicly
facing
GenAI
tools
were
discoverable.
But
a
ruling
on
the
same
day
of
the
Heppner
decision
by
a
federal
district
court
judge
in
Michigan
appeared
to
reach
a
contrary
result.
But
did
it?
The
case,
Warner
v.
Gilbarco,
involved
a
pro
se
plaintiff
who
apparently
used
some
“AI
tools”
in
some
unspecified
fashion.
Defendants
requested
the
documents
from
that
work
and
Warner
claimed
work
product
privilege
and
moved
to
compel.
The
court
denied
the
motion.
While
on
its
face,
the
ruling
appears
inconsistent,
on
closer
review
it
isn’t
necessarily.
In
fact,
the
court
began
its
analysis
by
plainly
stating
the
material
in
question
was
not
relevant,
or
even
if
so
proportional.
It
should
have
ended
there.
The
Warner
Ruling
In
Warner,
the
defendants
argued
that
by
using
the
unspecified
AI
tools,
the
plaintiff
waived
the
attorney-client
and
work
product
privileges.
It’s
not
entirely
clear
how
the
plaintiff
could
assert
an
attorney-client
privilege,
nor
is
it
indicated
whether
the
pro
se
plaintiff
is
an
attorney.
The
court
instead
focused
on
the
work
product
privilege,
noting
first
that
a
pro
se
plaintiff
can
assert
a
work
product
privilege
under
case
law
in
that
circuit.
The
court
then
stated
that
a
waiver
has
to
be
a
waiver
to
an
adversary
or
result
in
the
likelihood
that
the
material
in
question
will
get
in
an
adversary’s
hands.
While
disclosure
to
any
third
party
would
waive
the
attorney-client
privilege,
said
the
court,
that’s
not
so
for
waiver
of
the
work
product
privilege.
Warner
Is
Not
Necessarily
Inconsistent
In
fact,
the
underlying
principles
and
the
holding
is
not
necessarily
inconsistent
with
that
in
Heppner.
First,
the
fact
that
Warner
was
pro
se
is
important.
Courts
often
give
pro
se
parties
a
little
leeway
for
obvious
reasons.
Warner
had
no
lawyer
to
go
to
to
formulate
strategy
and
discuss
her
case.
So
Warner
used
tools
that
were
available.
And
the
work
product
privilege
clearly
applied
to
her.
In
Heppner,
on
the
other
hand,
the
defendant
had
a
lawyer
and
chose
to
ignore
him,
conducting
his
own
search
and
discussion.
That
difference
is
critical.
Second,
the
Warner
court
ignored
one
factor
that
the
Heppner
court
relied
on:
the
fact
that
the
GenAI
tool
in
that
case
kept
the
material
that
was
generated
and
used
it
for
training
purposes.
The
Warner
court
merely
concluded
without
analysis
that
the
Warner
material
was
not
likely
to
get
into
Gilbarco’s
hands.
That’s
an
important
factor
that
the
Warner
court
didn’t
address.
What
Was
Really
Going
On?
It
also
can’t
be
ignored
that,
to
be
blunt,
the
Warner
court
was
simply
pissed,
which
often
happens
in
discovery
disputes.
Why
do
I
think
that?
Here
is
what
the
court
said:
The
motion
seeks
intrusive
post-discovery
production
based
on
speculation
about
what
might
exist
in
Plaintiff’s
internal
drafting
process,
untethered
from
Rule
26
relevance,
disregarding
the
heightened
protection
afforded
to
opinion
work
product,
and
improperly
attempting
to
manufacture
a
waiver
where
none
exists.
At
its
core,
Defendants’
request
is
a
fishing
expedition…Additionally,
the
Court
agrees
with
Plaintiff
that
the
pursuit
of
this
information
is
‘a
distraction
from
the
merits
of
the
case.’
Pretty
strong.
The
court
clearly
thought
the
material
in
question
was
blatantly
non
relevant.
And
this
at
the
end
of
the
opinion:
“In
the
end,
both
sides
of
this
dispute
seek
to
obtain
each
other’s
thought
processes,
while
shielding
their
opponent
from
discovery
of
their
own.
The
Court
will
uphold
the
protections
afforded
the
thought
processes
and
litigation
strategies
of
both
sides
and
will
order
production
of
neither.”
In
other
words,
a
pox
on
both
your
houses.
To
get
there,
however,
the
court
took
some
unnecessary
detours
that
raise
some
questions.
A
Little
Wonky
Unfortunately,
to
get
where
it
wanted
to
go,
the
court
got
unnecessarily
a
little
wonky
which
detracts
and
confuses
the
holding.
First
it
said
that
GenAI
tools
are
not
people
and
therefore
disclosure
to
a
GenAI
tool
could
not
constitute
a
waiver,
as
a
waiver
has
to
be
to
a
person.
Not
sure
I
buy
that
since
many
legal
entities
are
not
technically
people
but
are
treated
as
such
in
a
variety
of
circumstances.
And
giving
GenAI
tools
non
people
status
could
have
serious
implications
down
the
road
when
it
comes
to
liability
among
other
things.
The
court
then
held
that
the
materials
were
her
internal
analysis
and
mental
impressions
rather
than
an
existing
documents
or
evidence.
Not
sure
about
that
one
either:
if
materials
aren’t
discoverable
because
what
they
contain
somehow
makes
them
neither
documents
nor
evidence,
I
wasted
a
lot
of
time
over
the
years
producing
stuff.
Neither
point
was
necessary
to
determine
a
lack
of
waiver.
Reading
the
Cases
Together
Be
that
as
it
may,
here
is
what
we
can
glean
from
reading
the
two
cases
together.
Use
of
GenAI
and
whether
it
constitutes
a
waiver
will
depend
on
the
facts.
Under
both
cases,
it
will
require
a
disclosure
and
that
disclosure
must
be
of
mental
impressions.
It
also
must
be
in
anticipation
of
litigation
not
just
idle
advice
here
and
there.
But
above
and
beyond
everything
else,
the
material
in
question
must
be
relevant
to
the
issues
in
the
litigation,
a
fact
I
mentioned
in
my
earlier
article,
calling
the
relevancy
showing
a
“tall
order”
in
most
cases.
It’s
clear
from
reading
the
Warner
opinion
that
the
court
felt
the
material
was
so
non-relevant
that
the
time
spent
on
trying
to
discover
it
was
nothing
more
than
a
time-consuming
distraction.
The
material
in
Heppner,
on
the
other
hand,
was
clearly
considered
relevant
by
the
court.
It’s
also
clear
that
waiver
is
viewed
differently
for
pro
se
parties
versus
represented
parties,
as
it
should
be.
If
the
Warner
material
was
relevant
and
Warner
had
an
attorney,
but
still
used
GenAI
tools
without
her
attorney’s
knowledge,
the
result
might
have
been
different.
So
there
are
some
factual
differences
that
are
important.
But
bottom
line,
both
cases
suggest
that
use
of
GenAI
tools
in
litigation
should
be
handled
with
care.
If
you’re
a
lawyer
and
represent
a
client,
it’s
still
a
good
idea
to
advise
them
that
they
shouldn’t
use
GenAI
tools
without
consulting
you.
Waiver
of
privilege
is
a
mine
field
and
can
easily
happen.
Nothing
in
either
Heppner
or
Warner
suggests
anything
to
the
contrary.
And
treating
them
as
inconsistent
and
thereby
convincing
yourself
that
privileges
protect
what
you
sent
and
received
to
a
GenAI
tool
from
discovery
would
be
a
mistake.
Stephen
Embry
is
a
lawyer,
speaker,
blogger,
and
writer.
He
publishes TechLaw
Crossroads,
a
blog
devoted
to
the
examination
of
the
tension
between
technology,
the
law,
and
the
practice
of
law.






